Patents and Computer Software

Many people in the computer software industry believe that the only protection that their products have is copyright. This is not correct. Other rights, patents in particular, exist that software developers should be aware of so that they can protect their own products, and avoid infringing the rights of others.

Patents for Software

There used to be a widespread belief that patents cannot be used to protect computer software, and that software developers need not be concerned about patents belonging to others. This is not so. Many people involved in software development now know that patents can be relevant to their activities, both in protecting their own work, and restricting some of their freedom to develop applications.

Patents are granted for inventions. If the invention happens to be implemented in software, this is not an automatic bar to patent protection. Every year, many hundreds, if not thousands of patents are granted for inventions which are contained entirely within software products.

The range of subject-matter for which patents can be obtained has changed frequently. After many years during which the scope steadily increased, the trend has been reversed of late. The EPO and the UK-IPO are now less willing to grant patents for inventions that are implemented in software than they were in the recent past.

Patentable or not?

In Europe, it is often said that a patent can be obtained if the invention within the software does something new which is “technical”. The problem is that the many court and European Patent Office cases that have discussed the need for an invention to be technical have never actually defined what “technical” actually means. What is clear is that it does not have the same meaning as it does in everyday use. Every case has to be looked at on it own merits. It is often apparent that an invention clearly is or is not technical. The problems arise from those inventions that are neither clearly one nor the other.

I am not going to try to offer an exact definition of what is or what is not patentable here, but there are some pointers to look out for.

A software product that automates normal business procedures is unlikely to be technical.  On there other hand, there are many software patents that relate to image processing, machine control, CAD/CAM, text processing (in some special cases), networking, operation of computers, robotics, typesetting, database access, virus detection and data compression, amongst others.

Do not assume that there is nothing patentable only because you have used standard development tools and libraries. It is the innovation, not the implementation, that matters most.

In the USA, it is possible to obtain patent protection for a larger range of computer software than it is in Europe. This includes some software that implements business methods. The USA appears to be following Europe, in that it is moving to restrict the scope of patents that will be granted in this field, but it is still the case that patent protection might be obtained for many inventions that would not be patentable in Europe.

As in Europe, the present trend in the USA appears to be a restriction on the range of subject-matter that is patentable. A recent US Court decision has restricted the scope of validity of patents for processes – that is, methods of doing something – and this is likely to reduce the number of patents granted for business methods implemented in software.

Consequences for Developers

What does this mean in practice? Patent considerations have increasingly become an integral part of the design cycle. Developers must be aware that new products might infringe other people’s patents. You do not have to copy in order to infringe a patent, and ignorance is no excuse. Therefore, a patent search should at least be considered before embarking on a development project.

In general, patents have equal effect on those developing free software and commercial software, and those developing closed-source and open-source software.

Developers should also consider protecting their own rights. A patent can provide very powerful protection to the working principles behind a piece of software, and can give a significant advantage in the market.

Above all, you must seek advice before you make your software (or the ideas behind it) public in any way.

Keep Watch!

It is possible to keep track of what your competitors are doing by monitoring their patent publications. Please ask for details.

Taking things further

If you have any questions relating to this or any other aspect of patent law, please feel free to get in touch. I am always happy to offer an initial exploratory discussion with neither cost nor obligation.